Strong, &c. , 37 Mass. 484 ( 1838 )

Morton J.

delivered the opinion of. the Court. Two questions arise upon this application. First, was the petitioner duly elected and entitled to a certificate of his election ? Secondly, if so, has he resorted to the proper remedy for redress ?

In the examination of these questions we have looked directly to their legal merits. Fortunately we have not been diverted from this object, by any matters of form or technical difficulties. All parties interested have been duly notified and had full opportunity to be heard. The case has been thoroughly investigated, and ably argued'on both sides. The petitioner has stated his claim with sufficient certainty and particularity ; and the answer of the examiners admits or states all the facts necessary to a correct decision. We shall therefore proceed immediately to the main questions, without taking further no tice of the objections to matters of detail in the petition or answer.

1. Was the petitioner duly elected a county commissioner ? If he was, there can be no doubt that he was entitled to the usual evidence of the fact.

Although this question must depend mainly upon general principles, yet it may not be useless briefly to advert to the course of legislation in relation to the offices in controversy The powers now possessed by the county commissioners were at different times vested in the “ General Sessions of the Peace,” the ‘ Court of Sessions,” the “Common Pleas,” and the “ commissioners of highways.” These different tribunals formerly exercised judicial authority, were deemed “judicial officers,” and were appointed by the executive.. But these judicial powers had from time to time been so reduced and narrowed down, that in 1835 the legislature deemed it wise and constitutional to take their appointment from the governor and council and vest it in the people. Stat. 1835, c. 152. The provisions of this statute were included in the general revision in 1836, and so much as relates to the question before us will be found in three sections of the 14th chapter of the Revised Statutes.

The sixteenth section authorizes the election of county commissioners by the people.

The seventeenth establishes the times of holding meetings, for this purpose ; and regulates the mode of balloting, of counting, declaring, recording and returning the votes. It first prescribes the duty of the electors. It directs that each qualified voter shall vote for three persons, for county commissioners. ; that the names of the three shall be borne on one ballot; and that they shall be “ all inhabitants of different towns in the county.” Whether these regulations are merely directory, or are conditions, on which the citizen’s right to vote depends, — whether it would be the duty or. the right of the selectmen to reject ballots having less than three names upon them, or having the names of more than one residing in the same town, — are questions, upon which we have no occasion to give an opinion. No objections have been made to the regularity of the meetings, the qualifications of the voters, or to the manner in which they exercised their elective franchise.

The section next prescribes the duty of the selectmen. They are required not only to preside at the meetings and receive the legal ballots offered, but in open town meeting, to sort and count the votes and the ballots, to make public declaration thereof,” and to verify the return by their signatures.

The section lastly prescribes the duty of the town clerk. He is to “ enter in the town records the names of all the persons voted for, and the number of votes for each, and the whole number of ballots,” and to transmit a copy of such record, duly authenticated and sealed up in open town meeting, to the clerk of the Court of Common Pleas.

What shall be the consequence of an omission by the selectmen or town clerk to perform any of these prescribed duties, and upon whom shall it fall ? For a wilful neglect of duty the officers would undoubtedly be liable to punishment. But shall the whole town be disfranchised, by reason of the fraud or the negligence of their officers ? This would be punishing the innocent for the faults of the guilty. It would be more just and more consonant to the genius and spirit of our institutions, to inflict severe penalties upon the misconduct, intentional or accidental, of the officers, but to receive the votes whenever they can be ascertained with reasonable certainty. If no return, or an imperfect one be received, let it be supplied or corrected by a reference to the original record, if any there- be.

The eighteenth section prescribes the duty of the board of examiners. It is a plain, easy, and, in most respects, a mere ministerial duty. They are to examine the returns ; to ascertain if any persons have a majority of all the ballots returned : and if so, to give them “ written notice of their election.”

The examiners must necessarily determine the genuineness and legality of the returns. But in doing this, they ought to receive them with favor and construe them with liberality. From the men who usually are, and necessarily must be, employed to make them, great formality or nicety cannot be expected and should not be required. If the record, and the return, which is a copy of it, shows the whole number of ballots, the names of the persons voted for, and the number of votes given to each, it contains every thing that is material, and if duly authenticated, may safely be received as a valid return, in whatever form it may be made. And if the whole number of ballots be omitted, it would not seem to be a fatal defect. For if the selectmen can only receive ballots with the whole number of names upon them, then the number of votes given to each candidate, would enable the examiners to ascertain the exact number of ballots, and thus render a return of the whole number of ballots unnecessary. And if this be not so, it may be presumed that every voter conformed to the directions of the statute ; and thus the whole number might be ascertained with ease and sufficient accuracy and certainty. There is no doubt that the examiners acted correctly, in receiv"ng the returns from all the towns in the county.

It will be seen by recurring to our analysis of the three sections of the statute, applicable to this case, that the selectmen are not required to declare, or the town clerk to record, or both of them to return the residence, age or other qualifications of the candidates voted for. Indeed this might be impossible, for the voter is not bound to describe, upon his ballot, the qualifications of the person named on it. Town officers cannot be holden to go beyond the directions of the statute or make their records and returns more specific and particular than that requires.

If some of the returns added the residence of the candidates and others omitted it, the latter contained all that the statute demands and the former were not vitiated by including more. All the votes should be counted for the persons for whom they were intended whether designated by residence or other addition or not. And if the persons having a majority were not ineligible, by reason of their residence, or other disqualification, they should be declared to be elected, and furnished with the proper evidence of that fact.

There seldom, if ever, will be any practical difficulty in as certaining the person intended to be voted for. Many circumstances will always concur to identify him. Even where there are several of the same name, it will not often happen that any doubt will arise, as to the person intended to be designated by the votes and by the returns. The only object should be to ascertain the expressed will of a majority of the electors. And with this in view and with the guidance of good practical sense, unfettered by technical rules and nice distinctions, there will be no danger of mistaking the voice of the electors. When, formerly, a majority of the electors of the Commonwealth voted for John Brooks, and, more recently, for John Davis for governor, either with or without a designation, nobody could doubt who was intended, although there were several of the same name in the Commonwealth, who were eligigible to the same office. Nothing could have been more unjust or subversive of the fundamental principle of our government, than to have defeated the elections of these distinguished citizens, by dividing the votes given for them, because some of them were given and returned with the addition of residence and others without it.

In the case before us, the examiners as sensible men, coulu not have doubted that all the votes returned for Elisha Strong, whether with or without the place of his residence, were intended for the same person, and had they not felt themselves bound by the letter of the returns and the construction which they put upon the statute, would undoubtedly have given him a certificate. We think they put too strict a construction upon the statute and upon the returns. The latter are only evidence of the will of the electors expressed by their ballots. If this evidence is such as to produce reasonable conviction of what that will is, it should be allowed to have its legitimate effect. But if they are so indefinite or ambiguous, in their descriptions of the persons voted for, that it cannot be ascertained that any person has a majority of all the suffrages, then the only proper course would be to send the matter back to the people, to give them an opportunity more clearly to express their will. But here was no reason to fear misapprehension. And to render it perfectly certain, it is made to appear that there was no person in the county by the name of Elisha Strong, other than the petitioner. This is expressly alleged in the petition, and is not denied in the answer.

There is another short view of this question, which is perfectly decisive and brings us to the same conclusion. If the designation of the residence is to be deemed an essential part of the return, and its omission a fatal error, then the returns with this omission, should have been rejected, as being too uncertain, and thus exposing the examiners to the absurd act of giving certificates to two or three persons, who were residents of the same town and not capable of holding the office. If the returns of this description be excluded, then Mr. Strong will have a majority. So that in any aspect of the case, he will be elected unless votes manifestly intended for him, be counted against him. This we think cannot be allowed. We are therefore of opinion that he was duly elected one of the county commissioners, and was rightfully entitled to a certificate of his election.

But it has been contended for the respondents, that the petitioner has mistaken his remedy, and that mandamus will not lie. It was said that his appropriate remedy, if he has an)', is by quo warranto and not by mandamus, or at any rate, that a quo warranto should precede a mandamus.

In every well constituted government, the highest judicial authority must necessarily have a supervisory power over all inferior or subordinate tribunals, magistrates and all others exercising public authority. If they commit errors, it will correct them. If they refuse to perform their duty, it will compel them. In the former case by writ of error, in the latter by mandamus. And gene:ally in all cases of omissions or mistakes, where there is no other adequate specific remedy, resort may be had to this high judicial writ. It not only lies o ministerial, but to judicial officers. In the former case it contains a mandate to do a specific act, but in the latter only to adjudicate, to exercise a dis. retion, upon a particular subject. Springfield v. County Commissioners &c. 10 Pick. 244.

Mandamus is the proper process for restoring a person to an office from which he has been unjustly removed. White's Case, 2 Ld. Raym. 959, 1004 ; Regina v. Baines, 2 Ld. Raym. 1265 ; Rex v. Chancellor &c. of Cambridge, ibid. 1334 ; Rex v. London, 2 T. R. 177 ; Rex v. Field, 4 T. R. 125. So also it lies to admit any one to an office, a service or a franchise from which he is unlawfully excluded. 6 Dane’s Abr. 326 ; Rex v. Surgeon's Company, 2 Burr. 892 ; Rex v. Barker, 3 Burr 1265 ; S. C. 1 W. Bl. 300 ; Rex v. Bedford Level Corp. 6 East, 356 ; Rex v. York, 4 T. R. 699, and 5 T. R. 66.

But it is strongly argued by the respondents’ counsel, that inasmuch as the office, claimed by the petitioner, is now filled by another, who can be removed only by a quo ivarranto, a mandamus will not lie. And, certainly, many of the authorities cited by them, support the position, that a mandamus will not lie to place one in an office actually filled by another, until the incumbent has been removed by a quo warranto. The case from 3 Johns. Cas. 79, The People v. New York, is directly m point. The court there say, that “ where the office is already filled by a person who has been admitted and sworn and is in by color of right, a mandamus is never issued to admit another person.” “ The proper remedy, in the first instance, is by an information in the nature of a quo warranto, by which the rights of the parties may be tried.”

But notwithstanding the respectability and weight of this and the other authorities cited, there certainly are very many the other way ; of which the case of Dew v. The Judges of the Sweet Springs District Court, 3 Hen. & Munf. 1, is one. Dew applied for a mandamus to the judges, to admit him to the office of clerk. It was objected among other things, that the office was already filled and the only remedy was by a quo warranto against the incumbent. But all the judges of the Supreme Court of Appeals of Virginia “ agreed clearly, that mandamus was the best remedy.” See also 6 Dane, 335, and the cases there cited. Mr. Dane, with whom we concur, says, “ On the whole the authorities, English and American, are much in favor of the mandamus, especially the more modern cases.

But the cases relied upon by the respondents, if in nowise shaken or overruled, are clearly distinguishable from the one before us, and may stand as sound law, and yet form no obstacle to the petitioner’s application. The cases referred to were applications to be admitted to' an office. The petitioner only seeks for a certificate of his election. This, if he obtains it, will not necessarily oust the incumbent or give the petitioner possession of the office. For these purposes he may still have to resort to a quo warranto, and possibly before he can get qualified to another mandamus. Two processes may be necessary to enable the petitioner to get possession of the office, the one to establish the legality of his own election, the other -to set aside that of the incumbent. They are independent of each other. Both might have been applied for at the same time and proceeded pari passu. Had the petitioner first caused the incumbent to be removed, by a quo warranto, still, without the evidence of his own election, he could not enter into the office. So if a mandamus be now issued and complied with, he may still be obliged to resort to other legal proceedings before he can get regularly inducted.

The King v. The Mayor &c. of York, 4 T. R. 699, and 5 T. R. 66, is analogous to the case at bar. An election of a recorder of the city of York was liolden, and a certifi cate was given to Sinclair that he was duly elected. The certific ate was to be presented to the king, for the purpose of obtaining his approbation of the election. Withers, the other candidate, applied for a mandamus to the corporation to give him a certificate, he having, as he alleged, a majority of the legal votes, and his opponent having gained the election only by the votes of persons not qualified to vote. An alternative mandamus issued, and afterwards, the return to that being insufficient, a peremptory one was ordered. Many other cases to the same effect might be cited, but without a further reference to authorities we are clearly of opinion that a mandamus is the proper remedy in this case.

We are aware that this is not a writ of right, but grantable at the discretion of the Court; Rex v. Commissioners of Excise, 2 T. R. 385 ; that inasmuch as it is final and cannot he revised, on error or otherwise, the Court will proceed with great caution in the exercise of so high a jurisdiction; Selwyn’s N. P. (6th edit.) 1062 ; 1 Chit. Gen. Pract. 791 ; and that they will not grant it, where there is any other adequate specific remedy. 1 Chit. Gen. Pract. 790 ; Rex v. Bp. of Chester, 1 T. R. 396 ; Rex v. Abp. of Canterbury, 8 East, 219. But we have no doubt that the present is a proper case for the exercise of our discretion ; and that to refuse to grant the writ would be doing palpable injustice to the petitioner, and defeating the will of a majority of the voters of the county, clearly manifested by their votes, duly and legally evidenced before the props tribunal. No other remedy can reach the evil. Although a quo warranto might remove the illegal occupant, it could not put the legal officer in his place. No civil action could be maintained by the petitioner, because there is no reason to doubt, that the examiners acted bona fide and with a sincere desire to perform their duty correctly and legally. And if it could, it would be a very imperfect and partial remedy.

It cannot be maintained that the decision of the examiners was an act within their legal discretion. Whether their determination as to the reception or rejection of returns, would be deemed a judicial decision, may well be doubted. But nothing can be clearer than that the counting the votes, and ascertaining the majorities and giving certificates of the result, are mere ministerial acts. They have.no discretion in determining which of the candidates shall be elected. It must be the result of pure, inflexible mathematical calculation.

We are therefore all of opinion, that the petitioner, in first seeking to have the validity of his own election inquired into, pursued a wise and legal course, that the proper remedy is by mandamus, and that justice clearly requires that such a writ be issued. But the usual, if not invariable practice is, in the first instance to grant it in the alternative form, giving the examiners a further opportunity either to give the certificate 01 to return the reasons for refusing it. As the case has been fully heard, they will doubtless adopt the first branch of the alternative, unless facts or reasons occur to them which have not been presented to the Court.

Alternative mandamus ordered.

CASES ARGUED AND DETERMINED IN THE SUPREME JUDICIAL COURT FOR THE COUNTY OF WORCESTER, OCTOBER TERM 1838, AT WORCESTER. PRESENT• Hon. LEMUEL SHAW, Chief Justice, Hon. SAMUEL S. WILDE, ) Hon. MARCUS MORTON, > Justices. Hon. CHARLES A. DEWEY, ^